Vaccine Policy For The Workplace: You Can Mandate Vaccination

Over the last week we’ve had dozens of conversations about what employers can do for vaccine policy. Let me summarize what we’ve learned, with research from Jeff Levin-Scherz, Ben Lupin (published in HRE) and Jena McGregor (published in Washington Post). And stay tuned, we’re learning more day by day.

Update today:  The EEOC just ruled that employers can mandate vaccination in order to come to work. While it is very clear that employers cannot discriminate or force medial exams, vaccination can become a “job-related requirement consistent with business necessity. Quotes below:

“The ADA requires that any mandatory medical test of employees be “job-related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others. The ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. Testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard.

Although the administration of vaccination is not a medical examination, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.  If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.” 

1/ Can you purchase vaccine for your employees?

Not yet. The Federal Government is purchasing all supplies and prioritizing vaccinations. As HRE states, “The National Academies of Science, Engineering and Medicine has published a Framework for Equitable Allocation of COVID-19 Vaccine, which gives the highest priority to high-risk healthcare workers and first responders and then prioritizes elderly adults in congregate living settings and those of all ages with underlying conditions that significantly increase their risk from COVID-19. Phase two of vaccination would include teachers and childcare workers, essential workers, those with underlying conditions that put them at moderate risk, those in homeless shelters, group homes and detention facilities and all those over 65.”

If you go out and try to by “gray market” vaccine you are taking a big legal risk, so I’d advise against it.

2/ When will you get the vaccine?

It’s a moving target but I’d suggest you go to the New York Times app that lets you see where you stack up.  It’s actually entertaining and informative.

3/ Can you reimburse employees for the Vaccine?

Yes, but the price is expected to be less than $20. The Federal Government is planning on covering the actual vaccine cost so most insurers may only charge an administrative fee.

After the “emergency period” is over it’s expected the price will go up.

4/ Can you require employees to be vaccinated?

Legal precedent is now becoming clear.

“Some employers with especially high-risk employees, including healthcare facilities, certain manufacturers, essential workers and frontline workers, might choose to require the vaccine at that point, much as many hospitals require their staff to get annual influenza vaccines. The Americans with Disabilities Act may require some exceptions, so again, employers should check with their counsel as they design any vaccine mandate. Furthermore, the Equal Employment Opportunity Commission and/or the Occupational Safety and Health Administration may issue guidance for employers on vaccine administration for employees.”

As the Washington Post states,

“Christine Nazer, an EEOC spokeswoman, said in a statement the EEOC “is actively evaluating how a potential vaccine would interact with employers’ obligations under the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, and the other laws the Commission enforces.” An email to the CDC was not immediately returned.”

There are also going to be state and local laws that could impact your policies. 

“Under the ADA, a vaccination is considered a medical examination that must be “job-related and consistent with business necessity or it’s necessitated by a direct threat,” said Karla Grossenbacher, a labor and employment lawyer with Seyfarth Shaw. Collective bargaining agreements with unionized workforces should also be consulted, employment lawyers said.”

But as of today, the EEOC ruled that Vaccination is not a medical exam and it can be a work-related requirement.

Most wellbeing companies are going to offer incentives and discounts and gift cards, so ask your wellbeing provider about their plans.

Companies like Ford and many health care providers and pharmacies are now staffing up to vaccinate employees. I’d suggest you stay in touch and we will publish case studies as soon as we hear them. 

5/ What can employers do to encourage vaccination?

The biggest opportunity we have in HR is to encourage employees to get vaccinated. And I think this is one of the most important things to consider.

In my conversations with a series of CHROs this week, many told me that their CEOs and CHROs will set an example and help promote the value of vaccination to their employees. While as many as a third or more of Americans seem reticent to take the vaccine, I believe there will be a massive Federal marketing program to help explain the benefits, and we as employers have a big opportunity to help.

According to the Washington Post, more than 60% of employees said they would take the vaccine if their employer recommended it.

Already companies like Qantas are going to mandate vaccination for passengers of international flights, for example.

Personally, I think this is a huge opportunity for the business community to step forward and help everyone feel comfortable becoming vaccinated.

I’ll try keep you updated on this important topic.